What Are Penalty for Violations in the Field of Construction in Hanoi? | ANT Lawyers

In any field, mistakes can occur but differ in actual consequences. Especially in construction activities, the consequences are difficult to predict, the violations in construction activities, to any extent, affect individuals and collective users. Therefore, the Hanoi City People’s Council issued Resolution No. 07/2014/NQ-HDND prescribing the fine levels for a number of administrative violations in the field of construction.

This Resolution prescribes the fine levels for a number of administrative violations in construction activities in the Government’s Decree No. 121/2013/ND-CP of October 10, 2013 on sanctioning of violations. Administration in construction activities; real estate business; exploitation, production and trading of construction materials; technical infrastructure management; housing and office development management (abbreviated to Decree No. 121/2013/ND-CP) in Hanoi city.

The Resolution provides a number of violations and penalties for corresponding acts of investors; of contractors and other organizations and individuals. In particular, the fine level prescribed for an administrative violation in the Resolution is equal to twice the fine level for the corresponding administrative violation in Decree No. 121/2013/ND-CP. The fines prescribed in Chapter II of this Resolution are those imposed on organizations. For the same administrative violation, the fine of an organization is 2 times that of an individual.

The titles competent to impose fines for administrative violations specified in Decree No. 121/2013/ND-CP are competent to impose penalties corresponding to the fines for the prescribed violations. in chapter II of this Resolution. Specifically, the subjects competent to sanction administrative violations under this Regulation include: Construction inspectors; Head of a specialized inspection team; Chief Inspector of Department of Construction; Chief Inspector of Ministry of Construction; Police; Market management; Presidents of People’s Committees at all levels

Above are the main contents of Resolution No. 07/2014/NQ-HDND of the Hanoi City People’s Council stipulating the fine level for a number of administrative violations in the field of construction, individuals and organizations should grasp to ensure their legitimate rights and interests. For compliance in the area of construction, it is important to consult with construction lawyers in Vietnam for advice.

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What to Note When Signing Labour Contract with Foreign Workers? | ANT Lawyers

With the policy of opening the economy in Vietnam, not only Vietnam attracts investors to set up company, but also the demand for foreign workers in enterprises grows and diversifies. However, in order for Vietnam companies to be able to use foreign workers, they must sign a labor contract.

After meeting the conditions specified in the Labor Code on meeting the requirements for recruitment and working in Vietnam, the foreign worker working in Vietnam shall sign a labor contract before the expected date intend to work for the employer. In this contract, the employer and the foreign worker will agree on all issues arising in the process of working as well as using labor together.

Firstly, on the working position in the labor contract, it must show the correct position and position for which the employer has determined the needs with the competent authority and in accordance with the working position shown in the document and the work permits which have been granted to foreign workers.

Regarding the working time, it will normally be agreed upon by the two parties but must not exceed the number of working days (hours) as prescribed by Vietnamese law. The number of overtime hours must be based on voluntary work and must ensure rest time, rest during working time and weekends for foreign workers.

According to the provisions of the Labor Code, in addition to Vietnamese public holidays and New Year’s holidays, foreign workers are allowed to take one more day off for the national traditional New Year and one national day of the country. This is a humane regulation, respecting the national culture of Vietnam. Therefore, the employer needs to learn about the National Day and the traditional Tet holiday of foreign workers so that the employees can take leave in accordance with the provisions of the law.

Regarding the term of the labor contract, the term of the labor contract for foreigners is also governed by the duration of the work permit issued by the competent Vietnamese authority. Accordingly, the term of the labor contract for foreign workers working in Vietnam must not exceed the term of the work permit. Therefore, the employer should pay attention to conclude the contract term in accordance with regulations.

In addition, employers and foreign workers should be aware of the terms of disputes which could potentially arise. Because, contract terms are an important legal basis to resolve when a labor dispute arises, agreeing in advance on how to resolve a dispute when a dispute arises will create a clear legal foundation for easy settlement by both parties. Dispute lawyers are suggested to be consulted at an early stage to avoid dispute escalation.

At most, it is important that the employers and foreign workers need to pay attention and strictly comply with the provisions of the law so that the process of entering into and performing the contract is conducted smoothly and in compliance with the law in Vietnam.

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What Are Regulations on Debt Trading Contracts in Vietnam? | ANT Lawyers

Along with the development of socio-economic activities, right to collect debt has become an asset right, hence its transferability is also recognized. Vietnam law recognizes debt as a commodity that can be traded through a debt trading contract. However, in order for the debt trading contract to be legally valid and ensure the rights and obligations are enforced, the parties need to pay attention to the provisions on the debt trading contract.

Firstly, in terms of the right to enter into a debt trading contract, according to the provisions of the Civil Code on the sale and purchase of property rights, the property right is the right to claim debt in Vietnam. Accordingly, the right to recover debt becomes the subject of a contract that the parties can transfer as if it were a special type of property. In addition, the debt trading contract aims to transfer ownership of the right of debt recovery and at the same time transfer the debt seller’s obligations to the debt purchaser. This is a transaction that does not affect the interests of the debtor totally. Therefore, the transfer of the right to demand does not require the consent of the obligor, whereby the parties can enter into a debt trading contract without the consent of the debtor.

Secondly, in terms of the form of the debt trading contract, based on the provisions of law prescribing debt trading contract by credit institutions and foreign bank branches, debt trading contract is a written agreement on the transfer of the right to collect debt for a debt arising from a lending operation, payment on behalf of the guarantee, whereby the debt seller transfers ownership of the debt to the debt purchaser and receives payment from the debt purchaser. Therefore, the debt trading contract must be made as a written document.

Furthermore, the debt trading contract must be signed by the legal representative or the authorized representative of the debt purchase and sale parties. Therefore, according to this provision, the debt trading contract does not require the parties to be notarized or authenticated. If necessary, the parties can agree on the notarization or authentication of the debt trading contract. In addition, the parties can make an agreement that the contract can be made in a foreign language and the parties need to consent on which language of the contract will be used in case of a dispute arisen. In addition, in case the debt purchaser and debt seller are organizations with legal status, in addition to the legal representative to sign, the contract needs to be stamped. These are strict regulations on the established form to ensure the legality of the contract’s form.

Thirdly, when drafting a debt trading contract, it must contains the following principal contents: (i) Time for signing the debt trading contract; (ii) Names and addresses of the parties to the debt trading contract; (iii) Name and title of the representative of the parties to the debt trading contract; (iv) Name and address of the debtor and related parties (if any) to the purchased or sold debt; (v) Details of debt purchased and sold: Loan amount, loan period, purpose, book value of the debt up to the time of debt purchase and sale; (vi) Security measures for the debtor’s payment obligation for the purchased or sold debt (if any); (vii) Debt selling price, payment method, payment term; (viii) Time, method and procedures for transferring debt documents and records, including dossiers and documents on debt security (if any); The time the debt purchaser becomes the subrogator, the debt seller has obligations; (ix) Rights and obligations of debt sellers and debt buyers; (x) Liability of the parties for breach of contract; (xi) Settlement of arising disputes. These are the basic and mandatory contents of a debt trading contract. In addition, the parties can make agree on other contents in the debt trading contract that are not contrary to the provisions of the laws.

In addition, during the implementation of the debt trading contract, the law allows the parties to agree to amend, supplement or cancel the content of the debt trading contract. However, the decision to amend, supplement or cancel must be based on ensuring compliance with the provisions of law.

Therefore, the establishment of a debt trading contract in Vietnam is basically the same as other property rights transfer transactions. However, debt is a special object of property rights, therefore the parties need to strictly comply with the provisions of law on the content and form of the contract to ensure the legality of the contract as well as the rights and obligations of the parties. It is suggested to engage lawyers with specialization in debt recovery and dispute resolution to assist drafting or reviewing debt trading contract for its effective usage.

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How to Determine Penalty and Compensation for Damages from Breach of Commercial Contract? | ANT Lawyers

When drafting a contract, especially a commercial business contract, in addition to basic provisions such as the object, scope of the contract, value and payment method, rights and obligations of the parties, dispute settlement, information confidentiality, and the regulations on the penalty for a breach of the contract and damage compensation are also very important.

Penalty for a breach of the contract

Under the provisions of the Commercial Law 2005, penalty for a breach means that the breaching party must pay a sum of money to the aggrieved party due to the breach of the violating party if the parties agree in the contract on the fine for a breach. Thus, the penalty for a breach only arises when there is a breach of the contract by the violating party and the parties have agreed on the penalty.

The law gives the right to agree on sanctions for violations to contractual parties, but this freedom to negotiate is limited. Specifically, the parties are only allowed to agree to a maximum penalty of 8% of the breached contractual obligation value, except traders providing assessment services issue assessment certificates showing incorrect results caused by their unintentional faults, they must pay penalty therefor to customers. The penalty level shall be agreed upon by the parties but must not exceed ten times the assessment service charge. In fact, the dispute settlement agency also bases on the prescribed limit of the law to handle; therefore, even if the parties agree to a higher penalty for a breach, it is not applicable in practice.

Compensation for damage

Compensation for damage means a remedy whereby the breaching party pays compensation for the loss caused by a contract-breaching act to the aggrieved party. The basis for arising damages is a breach of the contract; there is material loss and act of breaching the contract is the direct cause of the loss. Difference from penalty for a breach, liability to compensate for damages caused by breaches of contract performance obligations arises even in cases where the parties do not have an agreement on this matter. Besides, the law does not provide any regulation to limit the amount of compensation; it is based on the actual damages that the aggrieved party can prove.

When participating in the transaction, if both types of sanctions are specified in the contract, they should clearly specify the basis for the amount of compensation for the damages and the penalty for violation.

In fact, there are many cases where the parties do not agree clearly or agree on the penalty but the amount of the penalty exceeds the prescribed level, the excess could be considered invalid. The parties should also note that there will be no agreement on late payment interest on the infringement penalty and the amount of compensation damages.

We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers have Attorneys in Hanoi, Attorneys in Ho Chi Minh and Attorneys in Danang, will help customers conveniently drafting contracts and assist in resolving contract disputes.

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How Foreigners Can Extend Visa in Vietnam During Covid-19? | ANT Lawyers

Since the beginning of 2020, due to the impact of the Covid-19 epidemic, many foreign nationals entering Vietnam on a visa-free basis, entering with an e-visa or a tourist visa have been “stuck” in Viet Nam. In addition, Vietnam is restricting the issuance of new visas to foreign citizens to focus on the prevention of the Covid-19 epidemic, hence many foreign citizens in Vietnam cannot apply for a new visa, even though their visas have expired. Many foreigners have been concerning whether they can extend visa in Vietnam and seek help from immigration lawyers in Vietnam for such queries.

To ensure the legal residence of these foreign citizens during the time when the world is facing the Covid-19 epidemic, Vietnam has “automatically extended temporary residence” status for foreign citizens in the above categories from March 01st, 2020 to the end of December 31, 2021. Foreign nationals who are automatically extended temporary residence do not need to apply for a new visa, however, they will renew their temporary residence every month to legally reside in Vietnam.

The automatic extension of temporary residence is also applied to cases of entry before March 01st, 2020 if they can be proven to be stranded due to the Covid-19 epidemic, certification of the Diplomatic missions by Diplomatic note (with Vietnamese translation) or a written certification from a Vietnamese competent authority about being isolated, treated for Covid-19 or other force majeure reasons.

In addition, to be automatically extended temporary residence, foreign citizens eligible for automatic extension of temporary residence must make temporary residence declaration and medical declaration according to regulations. In addition, foreign citizens need to comply with and not violate the law in Vietnam.

Automatic extension of temporary residence will help foreign citizens save time, cost, and travel restrictions during the outbreak of the pandemic as complex as it is today. However, the extended period of temporary residence is normally 30 days, hence the foreigners need to carry out the procedure to extend their temporary residence every month according to the notice of the Immigration Department.

In cases of extension of temporary residence, foreign citizens are allowed to temporarily reside in Vietnam for the permitted period and exit without declaration. After exiting the country, if they wish to return to Vietnam, foreign citizens must apply for a new visa in accordance with the law.

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Plan to Simplify Regulations on Telecom, Gaming, Internet Service | ANT Lawyers

In the process of economic integration and development, in order to create favorable conditions for business and service sectors under the management of the Ministry of Information and Communications, Vietnam has approved the plan to reduce and simplify regulations a number of regulations under its control.

Accordingly, Decision No. 1994/QD-TTg agreed to reduce and simplify regulations related to business lines: Provision of pay radio and television services; Provide G1, G2, G3, G4 video games online; Newspapers; Telecommunications service business; publisher’s activities; Business in printing services, except for packaging printing; Publishing services business; Postal services; Information Technology; Science and technology; Domain name registration and maintenance services; Internet; Network information security products and services in Vietnam. It is important for the company operating in the areas of concern to consult with telecom, internet business, media lawyers to follow up with specific changes in law in Vietnam.

These are industries with fast-growing trends and have a strong impact on other industries as well as on the overall economic development. Therefore, the facilitation and restriction of procedures will contribute to attracting foreign investment and creating development motivation for businesses, quickly catching up with the rapid changes of services, improving the quality of services and improving the quality of services information and communication products.

Accordingly, on procedures for granting certificates of eligibility to provide public electronic game services, for the application components “Plan for the location of the computer room of the public video game service point suitable according to the prescribed area” and “Pay the fee for the issuance of the Certificate of eligibility to operate the point of supply providing public video game services” were abolished. Especially, it is subject to change immediately after the time of licensing. Therefore, the information of the location of the machine room option at the time of consideration for licensing is of little significance. Besides, the Decision also mentions supplementing the form of implementing administrative procedures on electronic means (changing the form of paper copies into electronic ones) to be flexible and ensure consistency with the Enterprise Law 2020 in the implementation for businesses.

The decision also abolishes administrative procedures for granting licenses to provide G1, G2, G3, G4 video game services online. According to the plan, many procedures with G1 online game service will be abolished such as: licensing procedures; license re-issuance; license renewal or procedures for amending and supplementing the license to provide G1 video game services on the internet… This is a meaningful abolition decision for the practice of licensing video games. Because, it is challenging for state agencies to request enterprises to apply for permits and report every time they change their business plans, affecting the autonomy of enterprises as well as creating huge inadequacies in terms of business administrative procedures.

In addition, business conditions: “The publisher’s office has an appropriate area, meets the provisions of the law on standards and norms for using the office” has been simplified to ” having an office that meets the provisions of law on standards and norms for using the office”. This change is reasonable, because the criterion of suitable area has no basis for explanation. Moreover, the area of ​​the publisher’s headquarters is not related to the management of the State. With the new regulations, publishers can be autonomous in choosing the right area, ensuring space for business activities. At the same time, the Decision also combines two administrative procedures including re-issuance and renewal of licenses for printing and publishing publications into one administrative procedure, limiting cumbersome procedures, saving time and costs for businesses.

In addition, in the field of publication distribution service business, the Decision simplifies the process of granting certificates of registration for publishing and publishing electronic publications in the direction of only performing the verification process determining the project of publishing and distributing electronic publications. Therefore, if the project is eligible and accepted, the enterprise will be granted a certificate of operation registration immediately.

According to the simplified version of the Decision, the Postal Business Registration Certificate and the Postal Investment Certificate in Vietnam will be merged into the Business Registration Certificate.

Therefore, the introduction of Decision No. 1994/QD-TTg has reduced and simplified procedures; help the process of preparing documents quickly; save time for organizations and individuals when carrying out administrative procedures and minimize the cost of administrative compliance.

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How Divorce Procedures Involving Foreign Elements in Vietnam Are Regulated? | ANT Lawyers

The procedure for divorce in Vietnam involving foreign elements is one of the complicated procedures. Therefore, when implementing this procedures, the parties need to pay attention to the related legal provisions to avoid problems when conducting the divorce procedure in Vietnam or involve family lawyers for assistance in preparing documents and filing petition, especially if there are potential dispute in custody or common assets, properties division.

Divorce involving foreign elements means termination of the husband and wife relation under a court’s legally effective judgment or decision, in which at least one partner is a foreigner or an overseas Vietnamese or in which partners are Vietnamese citizens but the bases for terminating that relation are governed by a foreign law, or that relation arises abroad or the property related to that relation is located abroad, according to the interpretation on “divorce” and “Marriage and family relation involving foreign elements” of Law on Marriage and family 2014.

The parties when implementing this procedure need to ensure that s/he has the right to request a divorce as prescribed in Article 51 of the Law on Marriage and family 2014. Specifically, the subject of the divorce procedure must be the wife or the husband, or the legal guardian of s/he in the case s/he lost the civil act capacity. The husband has no right to request a divorce when his wife is pregnant, gives birth or is nursing an under-12-month child.

The divorce between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam shall be settled at a competent Vietnamese agency. In case a partner being a Vietnamese citizen does not permanently reside in Vietnam at the time of request for divorce, the divorce shall be settled in accordance with the law of the country where the husband and wife permanently co-reside; if they do not have a place of permanent co-residence, the Vietnamese law shall apply.

The Court in Vietnam has the jurisdiction to settle the divorce request. More specifically, the People’s Court of province have the jurisdiction to settle the case in which involve parties or properties in foreign countries or which must be judicially entrusted to representative agencies of the Socialist Republic of Vietnam overseas or to foreign courts.

The Court will settle the case according to the procedure on code of civil in Vietnam. The time to settle the case will be based on the details of the case. The time limit for trial preparation is from 04 to 06 months from the date the Court accepts the case. The time to set up the court is from 01 to 02 months from the date on which the decision to bring the case to trial is issued. The marriage relationship will terminate from the date the Court has the valid divorce decision.

Besides, the dossier on divorce involving foreign elements including the documents related to marriage relationship, the identification and the documents related to the property, children according to the regulations on Law on Marriage and family 2014 and Code of Civil procedure 2015. In detail, the dossier includes the petition for divorce, the copy of Identification or other personal documents (Passport, Identification card); the copy of Household book, the original of Marriage certificate, in case the parties lost the original of Marriage certificate, the parties could provide the copy of Marriage certificate with the confirmation of competent authority and need to show this information in the petition for divorce, the copy of the birth certificate of the child/children (if having the common child/children); the copies of the documents on the ownership of the property (if increasing the dispute).

In addition, when submitting the dossier on requiring to settle the divorce case: (i) if the parties got married in Vietnam, then the spouse exits abroad (and s/he could not find the address of the spouse), s/he needs to have the confirmation of the competent authority that the spouse existed; (ii) if the parties got married under foreign law wish to divorce in Vietnam, they need to implement the procedure on legalization the Marriage certificate, other related documents, and note in the register book of Department of Justice, then submit the divorce petition. In the case the parties did not implement the procedure on note in the register book but they still wish to divorce in Vietnam, they need to show the reason why they did not make the marriage note.

The person whom submit the divorce petition will submit the dossier to the People’s Court of Province where one of the parties are residing in Vietnam. The Court will check the dossier, if valid, the Court will issue the notification on paying the court fee. After the court fee is paid, the Court will accept the divorce case and issue the notification on acceptance the case to Procuracy, and defendant (the involved parties). Many Courts in Vietnam require the parties to implement the reconciliation step.

It is suggested to involve dispute lawyers if the case of divorce would turns out to be complicated when there are disputes on custody and assets or property division.

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How to Determine Labour Relationship under Labour Code 2019? | ANT Lawyers

During Covid pandemic, many companies face economic challenges that need to reduce the high paid workers’ cost. There are situations which dispute arisen and the employee started to realize that the contract he or she signs with the company he or she spends eight hours each day, follows instructions of work from supervisors, and receives monthly payment at the end of the month, seems to be a consulting contract on the face instead. Is this a consulting contract or a labour contract? It is suggested the disputants engage the dispute lawyers to help resolve the potential conflict or help provide legal opinions if a labor relationship is established or not.

A labour contract is essentially a civil transaction, whereby the employer and the employee enter into it on the basis of voluntarily, equality, goodwill, cooperation and honesty. According to the provisions of the Vietnam Labor Code 2019, “a labor contract is an agreement between an employee and an employer on a paid job, salary, working conditions, and the rights and obligations of each party in the labor relations”. In addition, the agreements which are not under the name of a labor contract but have content showing paid employment, salary and the management, administration and supervision of one party are considered as labor contracts.

An employee is allowed to enter into many labor contracts, but the employee must ensure compliance with signed contracts, this provision creates conditions allowing employees to use their full working capacity and have additional sources of income.

Contents of the labor contract must contain information about the employer and employee; Specific information about the job and workplace; Duration of the employment contract; Job- or position-based salary, form of salary payment, due date for payment of salary, allowances and other additional payments; Regimes for promotion and pay rise; Working hours, rest periods; Personal protective equipment for the employee; Social insurance, health insurance and unemployment insurance; Basic training and advanced training, occupational skill development, these are basic but very important contents that employees need to pay attention to negotiating closely and fully to ensure the interests of employees in the process of contract performance. Besides, depending on the job and job position, the employer and the employee can agree in writing on issues related to information confidentiality, however, the employer needs to pay attention to building an appropriate system of internal labor documents to ensure the practical and effective application of information confidentiality.

Regarding the probationary contract, Labor Code 2019 allows employees and employers to agree on the content of the probationary period in the labor contract itself or sign a separate probationary contract. The agreement on the content of the probationary period in the labor contract will cause some insurance obligations to the insurance agency, therefore, the employer and the employee need to carefully search relevant legal provisions in order to negotiate and agree on the contents of the labor contract to ensure compliance with the law and the rights and obligations of both parties.

In addition, in case the employee and the employer wish to amend, supplement or replace the agreed contents in the labor contract, the two parties sign an addendum to the labor contract to amend the respective contents. However, if the term of the labor contract is changed, the parties must agree to terminate the old labor contract and enter into a new labor contract. The labor contract appendix is ​​an integral part of the labor contract and has the same effect as the labor contract.

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Network security services – Cybersecurity solutions in the new situation | ANT Lawyers

Information technology is existing in almost all areas of life, contributing to increasing work efficiency, saving time and costs. Besides these advantages, users also face many risks from loss, leakage of personal data, and organizational information and invasion of privacy when accessing the network. Therefore, network security service has becoming a necessary solution. Accordingly, Vietnam Ministry of Public Security proposed to consider cybersecurity protection services as business lines which are subject to conditions in the Vietnam Investment Law.

According to statistics in 2021, the Ministry of Public Security has recorded and analyzed nearly eight million warnings related to cyberattack activities, thereby detecting and verifying 2,763 cyberattacks targeting portal sites in the country (up 26% compared to 2020). In addition, cyberattacks tend to increase, causing political influence and greater economic losses. In addition, the situation of illegally collecting and infiltrating information and data of organizations and individuals for illegal purpose are increasingly complicated. The participation of network security services will contribute to strengthening the protection of the network security environment, especially important economic organizations such as banks, securities, state agencies, which are organizations that have vital role of the country.

On the other hand, the development of network security services is in line with the development policy of the country. Specifically, in Resolution No. 30 of the Politburo on the National Cybersecurity Strategy, the ultimate goal has been determined to reduce the risk of national security and social order and safety being compromised. Moreover, the Government has also issued Resolution No. 22 on the action plan to ensure national cybersecurity. Accordingly, the Ministry of Public Security shall assume the prime responsibility for formulating a Decree stipulating conditions for trading in cybersecurity products and services. Therefore, making network security services a business line is consistent with the current context and development orientation.

In addition, approving network security services will guide specific regulations and conditions for businesses. Businesses and organizations and individuals providing cybersecurity products and services will need to actively comply with regulations. The business conditions for network security services will ensure that network security products and services to be provided by reputable and capable service providers. Accordingly, improving policies and laws and improving the effectiveness and efficiency of state management of information, communication and network security will be a solid basis for cybersecurity services to demonstrate their functions and roles its important role in the overall development of the country.

Moreover, developing quality and effective cybersecurity services will create more opportunities and attract more foreign investors to participate in the Vietnam market. Most business activities now have involved the Internet connection, and therefore the risks such as information security and data security will be an issue of concern to investors making investment, setting up company in Vietnam. If network security services that support risk reduction and data recovery to help run business well, it will create confidence and motivation for investors.

The Ministry of Public Security expects network security products and services to include: (i) Confidential products to collect information (devices where hardware and software have the function of collecting information, documents, and data) via cyber – spyware; (ii) Security control products for network traffic (in which specialized hardware and software equipment for competent state agencies are designed with specific features to protect targets, systems, etc.) information system to warn, detect and prevent cyber security violations; (iii) Network security monitoring services, network security testing, knowledge training, network consulting, standards assessment. These are services and products that have practical applications and are capable of meeting the needs of individuals and organizations using cyberspace.

Therefore, although cybersecurity services have not yet been officially approved, in the current context, network security services will be an effective solution to work with the Government to build a digital environment and develop digital technology secure and sustainable information technology in line with the speed of global development. It is expected that when cyber security services are specified, it will promote a healthy, safe and effective cyber environment and hence promote the business and investment in Vietnam.

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What Are New Conditions on Real Estate Purchase and Sale in 2022? | ANT Lawyers

Real estate business activities have a great influence on socio-economic development. Accordingly, in order to ensure the legal framework for the current real estate business activities, the Government has issued Decree 02/2022/ND-CP detailing the implementation of a number of articles of the Law on Real Estate Business (“Decree 02/2022/ND-CP”) in order to promptly amend and supplement inadequate regulations to be consistent with reality. In which, conditions for the transfer of contracts of purchase and sale, lease-purchase of houses and construction works are mentioned.

The demand for the transfer of purchase and sale contracts, lease-purchase of houses, real estate, construction works on the market is at a high level, although there are no regulations on the transfer of contracts for the sale of non-residential real estate not to be formed in the future. Therefore, there is no legal basis to carry out these transactions in reality. Therefore, Decree 02/2022/ND-CP has had a number of amendments and supplements and has overcome some limitations compared to the past, which is expected to solve problems and inadequacies.

Accordingly, Decree 02/2022/ND-CP has combined conditions for transfer of contracts for purchase and sale of future houses and conditions for transfer of lease-purchase contracts for existing houses and construction works with specific regulations.

Firstly, the transfer of the contract requires a purchase and sale contract or a lease purchase contract made in accordance with regulations. Accordingly, these contracts must ensure compliance with the provisions of the transfer agreement form for each transferred real estate object, whether it is a Contract for Sale, Purchase, Lease and Purchase of an apartment, or tourist apartments (Condotel), office apartments combined with accommodation (Officetel)… are valid and allowed to be used for transfer. In addition, for cases where the parties have signed a contract before the effective date of Decree 02/2022/ND-CP, the signed contract must be present. Therefore, when transferring these types of contracts, the parties should pay attention to ensure the legality of the respective contract in terms of form and time of establishment.

Secondly, the transfer contract must be in the category that has not yet submitted a dossier to request a competent state agency to issue a certificate of land use rights, ownership of houses and other land-attached assets. This provision has been mentioned in the previous regulations for the transfer of real estate contracts formed in the future. Up to now, this is still a necessary regulation to ensure that the handling of licensing procedures does not overlap, eliminating the risk that a real estate bears two or more certificates for the same object.

Thirdly, the contract of sale, purchase, lease-purchase of houses and construction works must be free of disputes and lawsuits. Accordingly, the disputed contract will not be used to transfer to a third party. This provision is consistent with the provisions on prohibition of transferring property rights to the disputed property. Therefore, in order to transfer the contract, the parties need to settle the dispute in advance to have a basis for the transfer of the contract. In many complicated cases, the real estate dispute lawyers need to be consulted for proper dispute solutions.

Fourthly, houses and construction works that are the subject of purchase and sale or lease-purchase contracts must not be subject to distraint or mortgage to secure the performance of obligations as prescribed by law. Recently, the phenomenon of transferring these contracts has increased with seriously violated the provisions of the law, making it difficult for relevant competent authority to handle, otherwise causing damages to the transferee without understanding the legal issues for the transferor in the contract. However, with the principle of respecting the agreement of the parties, the law still allows the assignment of the contract in this case if the mortgagee agrees and this consent must be recorded specifically to avoid disputes later.

It can be seen that the highlight of Decree 02/2022/ND-CP has initially solved the inadequacies in the transfer contract for tourist apartments (Condotel), office apartments (Officetel) that help relevant competent authority have a legal basis to handle the requirements. Further, Decree 02/2022/ND-CP has contributed to building a clearer mechanism so that the participants can actively comply with regulations on effective real estate business contracts, minimizing the contract disputes in Vietnam, creating a safer and more sustainable real estate market in Vietnam.

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What Are Regulation for Automatic Conviction Expungement? | ANT Lawyers

In order to show the spirit of humanity, create conditions for those who have been convicted to reintegrate into the community and stabilize their lives, the Vietnam Penal Code has built a system to automatically have criminal records in Vietnam removed. Accordingly, former convicted persons who have met the prescribed conditions will be considered as unconvicted and they will not have to continue to bear any consequences due to their former convictions. However, the implementation of regulations on the issue of automatically expunging criminal records in practice encounters a number of difficulties and problems.

It can be seen that, the need for recognition of criminal record removal is very obvious. Remission of criminal records will show a more positive recognition of the law for people who have been convicted of crimes and facilitate their participation in work and encourage them to quickly integrate into life. In the case of automatic conviction expungement, there are a number of changes that the former convicts should pay attention.

The natural condition of automatic conviction expungement.

In order to be automatically expunged, a convicted person must satisfy the conditions for automatic criminal record remission according to the provisions of the Penal Code. Accordingly, a person who has been convicted must satisfy the following conditions: (i) have fully served the legally effective conviction of the court or the statute of limitations for judgment enforcement, including the principal penalty, has expired. and additional penalties (fines, damages, court fees…); (ii) not to commit a new offense within the prescribed time limit. These are the basic conditions proving that the former convicted person has fulfilled all the obligations for his/her offense.

The implementation procedure, if an individual who has been convicted has a request for a certificate of criminal record remission.

Accordingly, the agency competent to handle the case is the agency that manages the judicial record database. Therefore, the National Center for Criminal Records – the Ministry of Justice will guide the Department of Justice to directly regulate the Detailed procedures to clear criminal records for cases where criminal convictions are automatically cleared. Individuals who wish to carry out the procedure of automatically expunging their criminal records will only need to prepare a set of documents requesting the issuance of a criminal record card and submit it to the Judicial Records Center or the Department of Justice of a province/ city where convicted person is a residence without having to provide any other documents. After receiving the dossier, the agency managing the judicial record database will be responsible for verifying the automatic conditions for criminal record remission and issuing a criminal record card confirming “no criminal record” if the individual has no criminal record eligible individuals as prescribed by law. Therefore, the provisions of the 2015 Penal Code on criminal record remission have naturally created more favorable and flexible conditions for individuals who have been convicted than in the previous procedure.

Regarding the verification of information about former convicts, the Department of Justice will send a written request for verification to the commune-level People’s Committee or the agency or organization where the convict resides and works after serving the sentence about whether that person is prosecuted, investigated, prosecuted or tried during the criminal conviction period. Commune-level People’s Committees and agencies and organizations will send a written notice of verification results to the Department of Justice. After receiving the written notification of verification results from the commune-level People’s Committees, agencies and organizations, the Department of Justice will handle criminal record remission for citizens.

Contrary to the previous regulations that the court will be the authority to issue a certificate of automatically expunging criminal records for convicts. According to current regulations, the authority belongs to the agency managing the judicial updates database information on the convict’s criminal history and, upon request, issue a judicial record card certifying that he or she has no previous criminal record, if all conditions are met. However, in reality, sometimes the current national database might not be synchronous. Therefore, when a convicted person requests for a judicial record card, the agency managing the judicial record database must take time to coordinate with relevant agencies such as the court, the procuracy, and the public prosecutor’s office… to verify the natural condition to delete the criminal record, which takes much time.

Therefore, at present, the confirmation of criminal record remission for the case of automatically expunging criminal records remission has specific regulations, but the implementation still faces many difficulties and complications affecting the interests of the requester. Hence individuals who have been convicted must keep relevant papers and documents to easily prove their claims are legal and save time and costs. The individual could authorize a law firm to help with criminal record procedures in Vietnam.

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What Are Challenges in Debt Recovery Litigation Procedures for Enterprise? | ANT Lawyers

In the operation of the enterprises, the arising of bad debts could be unavoidable. However, in order to be able to file lawsuit and collect debts and minimize bad debts in practice, there are still many difficulties. Currently, the process of debt recovery according to the provisions of the law still encounter many problems and shortcomings, while enterprises need more effective solutions to recover debts fully and quickly in order to ensure revenue and financial balance for enterprise.

In order to be able to recover debts according to the provisions of the law, enterprises could hire dispute lawyers or by themselves must go through two stages with relatively complicated procedures. Accordingly, the lawsuit need to be filed and after the court’s judgment, the enterprise needs to file a petition for civil judgment enforcement. Because, the trial stage and the judgment execution phase are two independent stages, each with a different process.

First, the stage of lawsuits in court. When the enterprise’s interests are infringed, the enterprise will need to file a lawsuit at a competent court. This is a traditional method of lawsuits that forces enterprise to comply with the court’s strict processes and procedures and relevant legal regulations.

Specifically, in order to initiate a lawsuit at the court, an enterprise must meet the following conditions to initiate a lawsuit: (i) there is a debt incurred and the debtor fails to pay the debt as committed, leading to a dispute and the enterprise believes that rights and interests are infringed; (ii) the dispute between the enterprise and the debtor in this case must fall under the exclusive jurisdiction of the court, not under the jurisdiction of any other agency or organization (arbitration); (iii) in some cases, if there is an agreement or is required by law to carry out pre-litigation procedures such as conciliation, negotiation, notification, etc., the enterprise must complete such procedures before requesting a competent court to settle disputes between the enterprise and the debtor. In addition, in the petition, the enterprise needs to enclose invoices, vouchers and loan documents to prove that the debt collection is grounded. These are the basic conditions that enterprise need to keep in mind when filing a lawsuit to ensure that the petition is valid and not returned.

After the petition is accepted and the enterprise completes the payment of the court fee advance, the court will conduct verification and collect evidences; conducting meetings, checking the handover, accessing and disclosing evidences and conciliation. In case the involved parties cannot reconcile with each other on the payment plan or agree on interest and debt, the court will bring the case to trial. During this period, enterprises need to consider late payment interest, principal and debtor’s financial situation in order for request to be accepted by the court and serve as a basis for possible judgment enforcement.

Second, the procedure for requesting judgment enforcement. After the judgment or decision of the court takes legal effect, it must be respected by organizations and all citizens. Accordingly, enterprises, especially debtors, within the scope of their responsibilities, should strictly abide by judgments and decisions and must take responsibility before law for judgment enforcement. Within 5 years from the date the judgment or decision takes legal effect, the creditor can by himself or authorize another person or dispute law law firm to make a written request for judgment enforcement and send it to the district-level judgment enforcement agency where the court is located for first-instance trial court to request judgment enforcement. Accordingly, enterprises need to prepare a written request for judgment enforcement together with the judgment or decision requested for enforcement and other relevant documents. For the extent of the petition for judgment enforcement, the enterprise needs to show information about the debtor’s assets or judgment enforcement conditions.

In addition, enterprises have the right to request civil judgment enforcement agencies to apply measures to secure judgment enforcement, including: freezing of accounts, temporary seizure of assets and papers, temporary suspension of registration, transfer, etc. change the current state of assets to avoid the debtor’s dispersal of assets and inability to repay the debt according to the judgment. At the same time, the judgment enforcement agency will issue a notice of judgment enforcement, setting a time limit for the debtor to voluntarily execute the judgment of 15 days from the date the debtor receives or is duly notified execution decision. At the end of the above-mentioned voluntary time limit, the debtor who has conditions for judgment enforcement but does not voluntarily execute the judgment will be subject to coercion.

The enforcement of money assets will be applied by the judgment enforcement agency one of the measures such as deducting money from the account; subtract from the judgment debtor’s income, collect money from the judgment debtor’s enterprise activities; collect money from judgment debtors who are holding or collect money from judgment debtors who are kept by third parties or sell assets of judgment debtors to collect debts.

Although the judgments and decisions have taken effect, the initiation of lawsuits and judgment enforcement in many cases still cannot be enforced and the enterprise can debt recovery is challenging.

One is the determination of the debtor’s address for the court to serve the documents. The debtor always tends to evade and not cooperate, i.e. constantly changing addresses and causing difficulties for the court in the process of settling the case. Accordingly, the court could not proceed to serve the debtor, then some courts have decided to return the petition to the claimant, or suspend the case because it considers that there are not enough conditions to initiate a lawsuit or not summon the defendant. This is one of the main factors causing delays in the legal process when enterprises initiate lawsuits.

The second is the application of trial procedure in absentia. In order to fully meet the conditions for trial in absentia, the court will take time and many measures to verify and post procedural documents according to regulations. Besides, for debt disputes with complicated elements, it takes more time to collect more documents and evidences, conduct solicitation of document expertise, etc. or the case has many people with interests and obligations related, the trial was adjourned several times. Therefore, the intangible interests of enterprises have been seriously affected.

Third is the execution process. In fact, many enterprises have had court judgments, but the judgment enforcement process has lasted for many years, and enterprise have not been able to recover their debts. This problem may arise from the lack of flexibility in the coordination between banks, other agencies and organizations and the judgment enforcement agency, which is detrimental to the verification and distraint of assets of the agency, directly affecting the time of judgment enforcement.

Fourth is for the distraint, auction of assets that are assets that are difficult to determine the value of, or properties that are in dispute or there are no auction participants are also reasons for the delay in debt recovery.

Fifth is due to human subjective factors. Specifically, due to opposing and uncooperative acts of changing the current status of mortgaged assets, obstructing the verification of judgment enforcement conditions, asset valuation, and asset auction. For movable property, the debtor could actively move or disperse in order to cause difficulties in the handling process. In addition, there are cases where enforcers violate the time limit for notifying or serving judgment enforcement decisions/notices, failing to conduct verification…

Hence, enterprises that wish to proceed debt recovery effectively need to proactively collect information, judgment execution conditions of the debtor and provide it to the judgment enforcement agency. Besides, it is necessary to seek the legal advice of law firm with experience in litigation and enforcement for debt recovery process in Vietnam.

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What Are Changes on Enterprise Registration According to Decree No. 01/2021/ND-CP? | ANT Lawyers

On January 4, 2021, the Government issued Decree No. 01/2021/ND-CP on enterprise registration.

From January 4, 2021, the following 04 procedures will be carried out in conjunction: Registration of establishment of enterprises, branches, representative offices in Vietnam; Labor usage declaration; Granting the number of the social insurance participant; Register to use invoices of the enterprise.

The enterprise code is also the enterprise’s taxpayer identification number and the unit participating in social insurance number of the enterprise. According to previous regulations, only the enterprise code was specified as the enterprise’s taxpayer identification number.

The Business Registration Office has the right to accept or reject the intended name for registration of the enterprise. The opinion of the Business Registration Office is the final decision to avoid the identical, mistaken enterprise name and violation of the regulations on enterprise naming. In case of disagreement with this decision, an enterprise may initiate a lawsuit in in Vietnam accordance with the law on administrative procedures.

In case an enterprise registers the date of business commencement after the date of being granted an enterprise registration certificate, the enterprise is entitled to do business from the date it is registered, except in the case of conditional business investment.

The person competent to sign the application for enterprise registration may authorize other organizations or individuals to carry out enterprise registration procedures. Authorized subjects may be individuals, organizations or non-public postal service providers or single service providers of public postal services. In case of authorizing a public postal service provider to carry out enterprise registration procedures, when carrying out enterprise registration procedures, postal staff must submit a copy of the application form according to the form provided by the operator. Public postal service providers to issue with certified signatures of postal staff and persons competent to sign written application for enterprise registration. In case of authorizing a non-public postal service provider to carry out enterprise registration procedures, the enterprise registration dossier must be accompanied by a copy of the service contract with the organization providing services to perform procedures related to enterprise registration, referral of that organization to the individual directly performing procedures related to enterprise registration and copies of legal papers of the individual introduce.

In addition, the Decree also stipulates that in addition to the way of paying fees and charges directly at the Business Registration Office, the fee payer can transfer money to the account of the Business Registration Office or use an electronic payment service. The enterprise registration fee is not refundable to an enterprise in the event that an enterprise is not granted an enterprise registration certificate. Online payment of fees and charges will also be supported on the National Business Registration Portal. However, the fee for using this service will not be included in the business registration fee, the fee for providing and disclosing information. In the event of an error in the electronic payment process, the fee or fee paying organization or individual should contact the service provider intermediary for settlement.

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What Changes in Procedures for Granting Work Permits for Foreign Workers from 2021? | ANT Lawyers

Vietnam law allows enterprises, agencies, organizations, individuals and contractors to recruit foreign workers for job positions that Vietnamese workers cannot meet the needs of business operation in Vietnam. However, the procedures to apply for permit allowing foreign workers to work in Vietnam is complicated which many times labour lawyers could be engaged to help provide more productive solutions to avoid delay or dispute that lead to the negative impact to the rights and benefits of employer or employee.

A foreign employee means a person who hold a foreign nationality and is at last 18 years of age and has full legal capacity; has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health; is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law; has a work permit granted by a competent authority of Vietnam, except in the cases the foreign employees are not required to have the work permit.

Job positions in which enterprises are employed by foreign workers include managers, executives, experts and technical workers.

Manager means a person in charge of management of an enterprise or the head or deputy head of an agency or organization.

Executive means the head or a person who directly administers affiliated entities of an agency, organization or enterprise.

Expert means a foreign worker who obtains at least a bachelor’s degree or equivalent and at least 03 years’ experience in his/her training field in corresponding with the job position/job assignment that he/she will be appointed in Vietnam; obtains at least 5 years’ experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam; or falls under a special case subject to decision of the Prime Minister according to a request of the Ministry of Labor, War Invalids and Social Affairs.

Technical worker means a foreign worker who has been trained in technical field or another major for at least 01 year and have worked for at least 03 years in his/her training field; or obtains at least 5 years’ experience in corresponding with the job position that he/she will be appointed in Vietnam.

Before applying for a work permit for a foreign worker, at least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall request to determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified and send a corresponding report to the People’s Committee of province where the foreign workers are expected to work.

The People’s Committee of province shall issue a document specifying accepted job positions and non-accepted job positions within 10 working days after receiving the foregoing report on demand for foreign workers or report on change thereof.

At least 15 working days before the day on which a foreign worker starts to work, the employee shall submit an application for work permit to the Department of Labor, War Invalids and Social Affairs of the province where he/she is expected to work.

Within 5 working days after receiving a duly completed application, the Department of Labor, War Invalids and Social Affairs of province where the foreign worker is expected to work shall issue a work permit to the foreign worker. The form of work permit shall be solely printed and issued by the Ministry of Labor, War Invalids and Social Affairs. If the application is rejected, a written explanation is required.

After the foreign worker is issued with a work permit, the employer and the foreign worker must sign a written employment contract as per Vietnam’s labor law before the date on which the foreign worker is expected to work. The employer shall send that employment contract to the competent authority that issue that work permit. The employment contract is the original or a certified true copy.

In a number of cases, there are situation which employer engages a foreign employee in a job but fails to perform sufficient work permit procedures in time. When a labour dispute arise, it takes time to prove the labour relationship between the parties and this would negatively impact the right and benefits of the employee. It is therefore important to ensure the labour compliance from both employer and employee side to avoid dispute.

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Extension of Answering the Questionnaire on Anti-dumping Case AD16 | ANT Lawyers

Trade Remedies Authority of Vietnam issued the announcement on extension of the term of answering the official questionnaire on investigating the application of anti-dumping measures on some products of office desks and chairs originating from China and Malaysia (Case No. AD16).

On December 06th, 2021, the Trade Remedies Authority of Vietnam issued the official Questionnaire for the foreign manufacturers, exporters in the case No. AD16.

On January 05th, 2022, the Investigation agency extended the term of answer the questionnaire for the first time on January 26th, 2022.

According to Article 35.2 Decision No.10/2018/ND-CP on guidelines for the law on foreign trade management on trade remedies dated January 15th, 2018, within 30 days after receiving the investigation questionnaires, the concerned parties must provide written replies to all questions in the questionnaire. In case of necessity or there are written requests for extension with reasonable reasons from the concerned parties, the investigating authority may extend the time limit but not more than 30 days.

The Investigation agency extended the term of answering the questionnaire for the second time at 17:00 P.M on February 09th, 2022.

If Client needs any more information or request for legal advice or potential dispute regarding trade remedies measures including, anti-dumping, countervailing duty and safeguard measures or international trade dispute matters, our competition, anti-dumping, and countervailing duty lawyers of International trade and tax practice at ANT Lawyers, a law firm in Vietnam always follow up anti-dumping cases and its development to update clients on regular basis.

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